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Stay-at-Home 2.0 Goes to Court

On Friday, May 15, Governor Sununu extended New Hampshire’s state of emergency a third time, through June 5, 2020. Since first pronouncing a state of emergency nearly two months ago, the governor has issued 40 decrees that profoundly affected virtually every aspect of life in New Hampshire. Retail stores, manufacturing, hotels and tourism, recreation, religious institutions, education, retail establishments, health care and personal services either suspended operation or were mandated to meet strict guidelines set forth under Sununu’s orders.

And Mary Rivard, a hair salon owner in Laconia, has a problem with that.

On May 11, Ms. Rivard’s lawyer, Robert Fojo, filed a lawsuit on behalf of his client, challenging Governor Sununu’s orders. That suit contested the Governor’s authority under the current statutes. Rivard’s lawsuit includes an emergency motion for a temporary restraining order, asking the Court to find Sununu’s orders void because he lacked the legal authority to continue renewing New Hampshire’s state of emergency.

Merrimack County Superior Court responded on Monday by scheduling a hearing on Ms. Rivard’s emergency motion for June 9th.

Governor Sununu’s original shutdown orders in March aimed to slow the spread of COVID-19 and thus avoid overwhelming the state’s healthcare system. Two months later, New Hampshire’s experience with the virus has been much different than anticipated.

On April 29, the governor admitted only 10% of COVID-dedicated beds in New Hampshire’s hospitals were occupied. Hospitals in Nashua, Manchester, Laconia and Peterborough furloughed staff after significant revenue losses. The New Hampshire Department of Health and Human Services confirmed that all COVID fatalities in the state were exclusively among those over age 60. New Hampshire has seen fewer than 200 COVID deaths to date, fewer than typically seen with seasonal flu.

Despite these facts, Governor Sununu extended the state of emergency twice, on April 24, and again on May 15. In the process, the governor determined some businesses in the state were “essential”, while others, such as Ms. Rivard’s hair salon, were not. Later revisions to his initial orders allowed hair salons to open, but under strict guidelines. Ms. Rivard may now cut hair, for example, but not color or blow-dry it. These restrictions on her normal business practice, her suit claims, make it impossible for her to operate her business at a profit. Indeed, Ms. Rivard’s lawsuit contends, her business, like many others across the state, may not survive the governor’s state of emergency.

New Hampshire law allows the governor to declare a state of emergency for “a natural, technological, or man-made disaster of major proportions.” Many felt the governor’s original orders for a state of emergency were justified. COVID-19 was a new virus and a potential aggressive threat to public health. However, the state’s experience with the virus no longer qualifies it as a “disaster of major proportions” once feared. Without such a disaster of major proportions, the governor has no legal authority to extend his state of emergency and with it, the restrictions placed on New Hampshire citizens and businesses.

Thus all eyes will be on the Superior Court’s June 9th hearing as it rules on the future of the New Hampshire’s state of emergency.